Where to now? The High Court weighs in on abuse claims

On 13 November 2024, the High Court of Australia delivered three judgments in relation to proceedings involving child abuse claims:

• Willmot v Queensland [2024] HCA 42 (Willmot);
• RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43 (RC); and
• Bird v DP (a pseudonym) [2024] HCA 41 (Bird).

Willmot and RC outline the circumstances in which a prospective trial would involve such unfairness or oppression to a defendant so as to warrant a permanent stay of the proceedings. The judgments will guide any application for a permanent stay which involves similar circumstances. They highlight that the assessment is nuanced and must be conducted on a case-by-case basis.

Bird confirms that vicarious liability is confined to relationships of employment and does not extend to relationships “akin to employment” or with independent contractors.

We expect to see some reduction in claims because of the judgment in Bird. It is now tolerably clear that an institution will not be vicariously liable for the acts of a person who is not an employee. However, institutions may still be directly liable in child abuse claims.

The judgments in Willmot and RC draw some clear lines for applications for permanent stays, and consequently, we expect there to be fewer disputes between plaintiffs and defendants about such matters and fewer such applications going forward. In isolation, the death of an alleged perpetrator or key witness, a lack of documentary evidence or an inability to positively challenge a plaintiff’s allegations, is unlikely to yield the requisite unfairness or oppression to warrant a permanent stay. However, a permanent stay will be appropriate if the foundational allegations of a claim are “so vague that they are incapable of meaningful response, defence or contradiction”,^[1] there is truly an inability to investigate the facts or there is some other “exceptional circumstance” that would produce such unfairness or oppression to a defendant at trial so as to constitute an abuse of process.

In turn, this added clarity should facilitate the settlement of appropriate claims through alternative dispute resolution.

Willmot

Willmot considers a permanent stay application brought by the State of Queensland in relation to a claim commenced by Ms Willmot against the State in the Supreme Court of Queensland seeking damages for sexual and physical abuse she alleged to have suffered more than 50 years ago.

Ms Willmot advanced a claim for four categories of abuse, whereby she alleged that she was:

• sexually abused by Mr Jack Demlin and sexually and physically abused by Mr Jack Demlin and Mrs Tottie Demlin during foster care placements with them between 1957 and 1959 (the Demlin Sexual Abuse Allegations and the Demlin Physical Abuse Allegations, respectively);
• physically abused by the supervisor of the Cherbourg Girls’ Dormitory, Ms Phillips, including beatings and severe floggings in the presence of others, whilst she was a resident of the Cherbourg Girls’ Dormitory in or about 1959 (Girls’ Dormitory Allegations);
• sexually abused by an uncle “NW” in or about 1960, who then was about 19 or 20 years of age, during a visit to see her maternal grandmother near Ipswich that was permitted by the Cherbourg Superintendent (NW Allegation); and
• sexually abused by her cousin or great uncle known as “Uncle Pickering” in or about 1967 on a second visit to her grandmother’s residence (Pickering Allegation).

The State brought an application seeking to permanently stay Ms Willmot’s claim on the basis that the consequential effects of the lapse of time (some 50 years) since the alleged abuse occurred had a burdensome effect on the State that is so serious that a fair trial of any of the allegations would not be possible.^[2]

It’s a question of fairness, not of the weight of the evidence to hand

In relation to the Demlin Sexual Abuse Allegations, Ms Willmot had no recollection of the alleged sexual abuse until she had a conversation in 2016 with “RS”, who reported to Ms Willmot, and gave evidence to the effect, that she was, and perceived her little sister and Ms Wilmot being, sexually abused by Mr Jack Demlin. Mr Jack Demlin had died before 2016 and there were no known contemporaneous records which bore upon the likelihood of this alleged abuse.

The majority of the High Court observed that Ms Wilmot’s lack of recollection until 2016 goes to the weight of her evidence, the evidence of RS and Ms Wilmot could be tested by cross examination at trial, it is unlikely that Mr Jack Demlin’s death deprived the State of much more than a “bare denial” and it was unlikely that contemporaneous documentary evidence of the alleged abuse ever existed, limiting the burdensome effect of the inability to refer to such evidence. On that basis, Ms Willmot’s appeal was upheld in relation to the Demlin Sexual Abuse Allegations.

“It is not unfair merely because a pathway to a positive challenge…has not been revealed”^[3]

The State advanced the argument that the Girls’ Dormitory Allegations should be stayed in circumstances where Ms Phillips and other key witnesses had died. However, there were contemporaneous documents addressing the conduct of Ms Phillips and her interactions with children other than Ms Willmot, which the majority of the High Court said “demonstrates that the State can understand Ms Phillips' alleged practice of corporal punishment and make an informed response to [Ms Willmot’s] allegation”.^[4] Ms Willmot’s appeal was upheld in relation to the Girls’ Dormitory Allegations.

Ms Willmot’s claim is not “all or nothing”^[5]

The Court of Appeal in Queensland held that it would be "insurmountably difficult" to disentangle the NW Allegation from the impacts of the other stressors. Put another way, it was argued that an assessment of causation of damage could not occur at trial.

The majority of the High Court determined that the ultimate question was whether or not each incident of alleged abuse was a cause of her alleged injury and “a trial in which Ms Willmot merely has trouble disentangling past events from each of her allegations is not necessarily unfair for that reason alone”.^[6]

Ultimately, it was held that the fact that NW was available for two years after the proceedings were instituted was sufficient to conclude that the trial of the NW Allegation would not be unfair.

A failure to plead with particularity can warrant a permanent stay

The majority of the High Court determined that the Demlin Physical Abuse Allegations, as pleaded by Ms Willmot, were “so vague that they are incapable of meaningful response, defence or contradiction”.^[7] On that basis, it was held that the Demlin Physical Abuse Allegations ought to be permanently stayed.

An inability to investigate the “foundational facts” may warrant a permanent stay

In relation to the Pickering Allegation, Ms Willmot failed to provide any particulars of the alleged abuse, could not recall Pickering’s full name and there was no documentary record of the alleged abuse. The High Court determined that the State did not, in those circumstances, have an ability to investigate the foundational facts underpinning the Pickering Allegation and its participation at trial would be limited to the cross-examination of Ms Willmot about the apparent inconsistencies in the Pickering Allegation. On that basis, it determined that the Pickering Allegation could not be fairly tried and permanently stayed the Pickering Allegation.

RC

In 2018, RC commenced proceedings against The Salvation Army (Western Australia) Property Trust in the District Court of Western Australia claiming damages for sexual abuse alleged to have been perpetrated by a Salvation Army Officer, Lieutenant Frank Swift, between August 1959 and April 1969 when RC was residing in Nedlands’ Boys Home, which was owned and operated by the Salvation Army.

RC alleged that he reported sexual abuse on two occasions to the officer in charge of the Home, Major Watson, which was ignored. In August 1968, Major Watson died. In 1989, Lt Swift was diagnosed with Alzheimer’s disease and died in October 2006. The Salvation Army became aware of RC’s allegations of sexual abuse by Lt Swift in February 2014.

In August 2015, a report entitled “Investigation into whether the Salvation Army’s historical responses to child sexual abuse were affected by cultural, endemic or systemic failings of the organisation” (the Walker Report) was given to the Royal Commission into Institutional Responses to Child Sexual Abuse and relevantly concluded that there were systemic failures of the Southern Territory of the Salvation Army (TSAS), which the Salvation Army was a part of, to adequately explore, investigate and respond to claims of abuse.

In September 2015, TSAS provided a statement to the Royal Commission which, amongst other things, addressed the way in which the Salvation Army had conducted the Home (the Tidd Statement). The Tidd Statement agreed with the Walker Report’s conclusions on TSAS’s systemic failures and concluded that, prior to 1997, the Salvation Army had no formal system or policies dealing with the protection of children and complaints of sexual abuse.

In 2017, Lt Swift’s wife, Doris Swift, who was also an officer of the Salvation Army and a potential witness, went into care suffering from significant memory issues.

In May 2021, the Respondent applied for a permanent stay of the proceedings. In December 2021, the primary judge ordered that the proceedings be permanently stayed and, in February 2023, the Western Australian Court of Appeal dismissed RC’s appeal and upheld the permanent stay.

A “trial of the allegations is not unfair merely because a pathway to a successful challenge to RC’s evidence has not been revealed”^[8]

The plurality, consisting of Chief Justice Gageler and Justices Gordon, Jagot and Beech-Jones upheld the appeal and dismissed the permanent stay, referring to the applicable legal principles in Willmot.^[9]

It was held that it was wrong for the primary judge and appellate court to conclude that there could be no fair trial of the proceeding on the basis that:

• the death of Lt Swift meant that the Salvation Army lost no more than the possibility of a bare denial by the alleged perpetrator;^[10]
• the death of Major Watson did not result in the Salvation Army losing valuable evidence;^[11]
• the Salvation Army failed to attempt to contact other Officers of the Salvation Army to test the claim, including Lt Swift’s wife;^[12] and
• ten potential witnesses were identified by RC as having been abused by the alleged perpetrator, which provided similar fact evidence in relation to the alleged abuse perpetrated against RC.^[13]

Bird

Bird^[14] considers whether (under common law in Australia) a relationship of employment is a necessary precursor, or a threshold requirement, to a finding of vicarious liability.^[15]

This is the first time the High Court of Australia has, in the “tortured history”^[16] of vicarious liability, determined whether, absent a relationship of employment between a wrongdoer and a defendant, a diocese or a bishop may be held vicariously liable for the unlawful actions of a priest who sexually abuses a child.^[17] A result in the affirmative would “expand the boundaries of vicarious liability beyond a relationship of employment to one that is ‘akin to employment’”.^[18]

In or around 1971, a priest from St Patrick’s (Coffey), a local parish church in the Catholic Diocese of Ballarat (RCD), sexually assaulted the respondent (DP) on two occasions during pastoral visits to DP’s parents’ home. DP was five years of age at the time that the sexual assaults occurred. Coffey’s actions were not done with the express or implied authorisation of the RCD.

Coffey was not employed by the RCD or engaged by the RCD as an independent contractor. It was held that the “unlawful acts done by Coffey…were not done with RCD’s express, implied or apparent authorisation, and at no time were those acts ratified by them.^[19] On that basis, he was not (in the relevant circumstances) an agent of the RCD.

The relationship between Coffey and the RCD was governed by Canon Law, which permitted the RCD (through the Bishop of Ballarat) to exercise control over Coffey that was "at least as great as, if not greater than, that enjoyed by an employer". It was accepted that, by virtue of his role as assistant parish priest, Coffey's work "comprised the "very essence" of the public manifestation of the Diocese and the Church…".^[20]

The scope of vicarious liability remains “as it has always been”^[21]

It was held that the principles of vicarious liability are confined to employment relationships and should not extend to include independent contractors or relationships “akin to employment”. In reaching its decision, the High Court:

• declined to use policy considerations to “redraw” (and align with developments in Canada and the United Kingdom) the boundaries of the relationships in which another may be found to be vicariously liable for the conduct of a tortfeasor;
• cited CCIG Investments Pty Ltd v Schokman (2023) 97 ALJR 551 with approval and restated the rules and principles of vicarious liability that were considered in Schokman; and
• observed that “abandoning the threshold requirement of a relationship of employment” did not “fit within the body of accepted rules and principles” of vicarious liability.^[22]

For those reasons, the majority held that there could be no finding of vicarious liability against the RCD because there was no employment relationship between the RCD and Coffey.

An ancillary issue also arose, as to whether leave should be granted for DP to press an argument raised for the first time during the proceedings before the High Court, namely, whether the RCD is liable for breach of a non-delegable duty owed to DP. The High Court unanimously accepted the RCD’s submission that it would be irremediably prejudiced if DP was granted leave to advance a non-delegable duty for the first time in the proceedings before the High Court and dismissed DP’s notice of contention in that regard.